On the accession of the Republic of Kazakhstan to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

Home / RLA / On the accession of the Republic of Kazakhstan to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

The Law of the Republic of Kazakhstan dated June 29, 1998 No. 247.

The Republic of Kazakhstan should accede to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted on December 10, 1984.

President

Republic of Kazakhstan

application

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment*

(Collection of the Ministry of Foreign Affairs of the USSR

"The USSR and international cooperation in the field of human rights

man", Moscow, 1989, p. 384)

The States Parties to this Convention,

Bearing in mind that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and universal peace,

Recognizing that these rights derive from the inherent dignity of the human person,

Bearing in mind the obligation of States under the Charter, in particular Article 55, to promote universal respect for and observance of human rights and fundamental freedoms,

Bearing in mind article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Bearing in mind also the Declaration on the Protection of All Persons from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to increase the effectiveness of the fight against torture and other cruel, inhuman or degrading treatment or punishment worldwide,

have agreed on the following:

Part I

Article 1

1. For the purposes of this Convention, the definition of "torture" means any act by which severe pain or suffering, physical or mental, is intentionally inflicted on a person in order to obtain information or confessions from him or a third person, to punish him for an act that he or a third person has committed or is suspected of committing, as well as intimidate or coerce him or a third party, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a government official or other person, acting in an official capacity, or at their instigation, or with their knowledge or acquiescence. This definition does not include pain or suffering that arises solely as a result of legitimate sanctions, is inseparable from these sanctions, or is caused by them accidentally.

2. This article is without prejudice to any international treaty or any national legislation that contains or may contain provisions for broader application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances, whatever they may be, be it a state of war or the threat of war, internal political instability or any other emergency, can serve as a justification for torture.

3. An order from a superior officer or a State authority cannot be used as a justification for torture.

Article 3

1. No State Party should expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

2. In order to determine whether such grounds exist, the competent authorities take into account all relevant circumstances, including, where appropriate, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4

1. Each State Party shall ensure that all acts of torture are dealt with in accordance with its criminal law. The same applies to an attempt to torture and to the actions of any person who constitutes complicity or participation in torture.

2. Each State Party shall establish appropriate penalties for such crimes, taking into account their grave nature.

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

2. Each State Party shall similarly take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him in accordance with article 8 to any of the States referred to in paragraph 1 of this article.

3. This Convention does not exclude the exercise of any criminal jurisdiction in accordance with domestic law.

Article 6

1. Having satisfied himself, after reviewing the information at his disposal, that the circumstances so require, any State Party in whose territory a person accused of committing any of the offences referred to in article 4 is present shall detain him or take other legal measures to ensure his presence. Detention and other such legal measures are carried out in accordance with the legislation of that State, but may only last for the time necessary to take criminal procedural or extradition actions.

2. Such a State shall immediately conduct a preliminary investigation of the facts.

3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in immediately establishing contact with the nearest appropriate representative of the State of which he is a national or, if he is a stateless person, with a representative of the State in which he habitually resides.

4. When a State takes a person into custody in accordance with this article, it shall immediately notify the States referred to in paragraph 1 of article 5 of the fact that such person is in custody and of the circumstances that gave rise to his detention. The State conducting the preliminary investigation provided for in paragraph 2 of this article shall immediately inform the aforementioned States of the data it has received and indicate whether it intends to exercise its jurisdiction.

Article 7

1. A State Party in whose territory, under its jurisdiction, a person suspected of having committed any of the offences referred to in article 4 is found, in the cases provided for in article 5, if it does not extradite the offender, shall refer the case to its competent authorities for prosecution.

2. These authorities make their decision in the same way as in the case of any ordinary crime of a serious nature in accordance with the legislation of that State. In the cases listed in paragraph 2 of article 5, the requirements for evidence necessary for prosecution and conviction are in no case less stringent than those applied in the cases referred to in paragraph 1 of article 5.

3. Any person against whom proceedings are being conducted in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8

1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between the participating States. The participating States undertake to include such offences as extraditable offences in any extradition treaty concluded between them.

2. If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it does not have an extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition is carried out in accordance with other conditions stipulated by the legislation of the State to which the extradition request is addressed.

3. States Parties that do not make extradition conditional on the existence of a treaty shall treat such offences as extraditable offences in their relations with each other in accordance with the conditions provided for by the legislation of the State to which extradition is requested.

4. For the purposes of extradition between States Parties, such offences shall be treated as if they had been committed not only in the place where they were committed, but also on the territory of States that are required to establish their jurisdiction in accordance with paragraph 1 of article 5.

Article 9

1. States Parties shall provide each other with the fullest possible assistance in connection with criminal procedural actions taken in respect of any of the offences listed in article 4, including the provision of all evidence at their disposal necessary for judicial proceedings.

2. The Participating States shall fulfill their obligations under paragraph 1 of this article in accordance with any mutual legal assistance treaties that may be concluded between them.

Article 10

1. Each State Party shall ensure that educational materials and information on the prohibition of torture are fully integrated into training programmes for law enforcement personnel, civilian or military personnel, medical personnel, government officials and others who may be involved in the detention and interrogation of persons subjected to any form of arrest, detention or imprisonment., or the treatment of them.

2. Each State Party shall include this prohibition in rules or instructions concerning the duties and functions of any such persons.

Article 11

Each State Party shall systematically review the rules, instructions, methods and practices relating to interrogation, as well as the conditions of detention and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, in order to prevent any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities conduct prompt and impartial investigations when there are reasonable grounds to believe that torture has been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure to any person who claims to have been subjected to torture in any territory under the jurisdiction of that State the right to lodge a complaint with the competent authorities of that State and to have such complaint promptly and impartially examined by them. Measures are being taken to ensure that the plaintiff and witnesses are protected from any form of ill-treatment or intimidation in connection with his complaint or any witness testimony.

Article 14

1. Each State Party shall ensure in its legal system that victims of torture receive redress and have a legally enforceable right to fair and adequate compensation, including the means for the fullest possible rehabilitation. In case of death of a victim as a result of torture, the right to compensation is provided to his dependents.

2. Nothing in this article affects any right of the victim or others to compensation that may exist under national law.

Article 15

Each State Party shall ensure that any statement found to have been made under torture is not used as evidence in any judicial proceedings, except in cases where it is used against a person accused of having committed torture as evidence that the statement was made.

Article 16

1. Each State Party undertakes to prevent, in any territory under its jurisdiction, other acts of cruel, inhuman or degrading treatment or punishment that do not fall within the definition of torture contained in article 1, when such acts are committed by or at the instigation of a public official or other person acting in an official capacity, either with their knowledge or tacit consent. In particular, the obligations contained in articles 10, 11, 12 and 13 are applied by replacing references to torture with references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international treaties or national legislation that prohibit cruel, inhuman or degrading treatment or punishment or relate to extradition or expulsion.

Part II

Article 17

1. A Committee against Torture (hereinafter referred to as the Committee) is being established, which performs the functions set out below. The Committee consists of ten experts with high moral qualities and recognized competence in the field of human rights and acting in their personal capacity. The experts are elected by the participating States, with attention being paid to equitable geographical distribution and the expediency of the participation of several persons with legal experience.

2. The members of the Committee shall be elected by secret ballot from among those included in the list of persons nominated by the participating States. Each Participating State may nominate one candidate from among its citizens. States Parties shall take into account the expediency of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who express a desire to serve on the Committee against Torture.

3. The members of the Committee shall be elected at meetings of the States Parties convened by the Secretary-General of the United Nations every two years. At these meetings, the quorum of which is two thirds of the States Parties, the members elected to the Committee are the candidates who received the largest number of votes and the absolute number of votes of the representatives of the States Parties to the Convention present and voting.

4. The initial elections shall be held no later than six months after the date of entry into force of this Convention. At least four months before the date of the next election, the Secretary-General of the United Nations shall send a letter to the participating States inviting them to submit their candidacies within three months. The Secretary-General shall prepare a list in which all the persons so nominated are entered in alphabetical order, indicating the States Parties that nominated them, and shall submit this list to the States Parties.

5. The members of the Committee are elected for a term of four years. They are eligible for re-election upon re-nomination. However, the term of office of the five members elected at the first election shall expire at the end of a two-year period; immediately after the first election, the names of these five members shall be determined by lot by the Chairman of the meeting referred to in paragraph 3 of this article.

6. In the event of the death or resignation of a member of the Committee or the inability to serve on the Committee for any other reason, the nominating State Party shall appoint another expert from among its nationals for the remainder of the term, with the approval of the majority of States Parties. A candidate is considered approved if half or more of the Participating States have not responded negatively within six weeks of receiving information from the Secretary-General of the United Nations on the proposed appointment.

7. The Participating States shall cover the expenses of the members of the Committee during the period of their duties on the Committee.

Article 18

1. The Committee elects its officers for a two-year term. They can be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall, in particular, provide for the following:

(a) Six members form a quorum;

(b) Decisions of the Committee shall be taken by a majority vote of the members present.

3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee in accordance with this Convention.

4. The Secretary-General of the United Nations shall convene the first meeting of the Committee. After its first meeting, the Committee shall meet at such intervals as are provided for in its rules of procedure.

5. The States Parties shall bear the costs of holding meetings of the States Parties and the Committee, including reimbursing the United Nations for any expenses such as staff and facilities provided by the United Nations in accordance with paragraph 3 of this article.

Article 19

1. States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to implement their obligations under this Convention within one year after the entry into force of this Convention for the State Party concerned. Thereafter, States parties shall submit additional reports every four years on any new measures taken, as well as other reports that the Committee may request.

2. The Secretary-General of the United Nations shall transmit these reports to all States Parties.

3. Each report shall be considered by the Committee, which may make such general comments on the report as it deems appropriate and transmit them to the State Party concerned. The State Party may, in response, submit to the Committee any comments it deems appropriate.

4. The Committee may, at its discretion, decide to include any comments it has made in accordance with paragraph 3 of this article, together with comments thereon received from the State Party concerned, in its annual report prepared in accordance with article 24. At the request of the State Party concerned, the Committee may also include a copy of the report submitted in accordance with paragraph 1 of this article.

Article 20

1. If the Committee receives reliable information that, in its opinion, contains well-founded data on the systematic use of torture in the territory of a State Party, it shall invite that State Party to cooperate in the examination of this information and, to this end, to submit its comments on this information.

2. Taking into account any comments that may be submitted by the State Party concerned, as well as any other relevant information at its disposal, the Committee may, if it deems it appropriate, appoint one or more of its members to conduct a confidential investigation and report to the Committee as a matter of urgency.

3. If an investigation is conducted in accordance with paragraph 2 of this article, the Committee shall seek to establish cooperation with the State Party concerned. With the consent of that State Party, such an investigation may include a visit to its territory.

4. After reviewing the results of the investigation conducted by that member or members, submitted in accordance with paragraph 2 of this article, the Committee shall transmit these results to the State Party concerned, together with any comments or suggestions that seem appropriate in the given situation.

5. All the work of the Committee referred to in paragraphs 1-4 of this article is confidential and cooperation with the State Party should be sought at all stages of this work. After completing such work in relation to the investigation conducted in accordance with paragraph 2, the Committee may, after consultation with the State Party concerned, decide to include a summary account of the results of this work in its annual report prepared in accordance with article 24.

Article 21

1. In accordance with this article, any State Party to this Convention may at any time declare that it recognizes the competence of the Committee to receive and consider communications concerning allegations by one State Party that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered in accordance with the procedures set out in this article only if they are submitted by a State Party that has made a declaration recognizing the competence of the Committee. The Committee shall not consider communications under this article if they relate to a State Party that has not made such a declaration. Communications received pursuant to this article shall be considered in accordance with the following procedure:

(a) If a State Party considers that another State Party is not complying with the provisions of this Convention, it may, by written communication, bring the matter to the attention of the said State Party. Within three months of receiving the communication, the receiving State shall submit in writing to the sending State an explanation or any statement clarifying the matter, which should contain, as far as possible and appropriate, an indication of the internal procedures and measures that have been taken, will be taken or may be taken on the matter.;

(b) If the matter has not been resolved to the satisfaction of both States Parties concerned within six months of receipt by the receiving State of the initial communication, either State has the right to refer the matter to the Committee, notifying the Committee and the other State accordingly.;

(c) The Committee shall consider a matter referred to it under this article only after it has ascertained that all available domestic measures have been applied and exhausted in the case in accordance with generally recognized principles of international law. This rule does not apply in cases where the application of these measures is unreasonably prolonged or is unlikely to provide effective assistance to a person who is a victim of a violation of this Convention.;

(d) When considering communications under this article, the Committee shall hold closed meetings;

(e) Subject to the provisions of subparagraph (c), the Committee shall provide good offices to the States Parties concerned with a view to resolving the issue amicably on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, if necessary, establish a special conciliation commission.;

(f) On any matter referred to it in accordance with this article, the Committee may call upon the States Parties concerned referred to in subparagraph (b) to provide any relevant information.;

(g) The relevant States parties referred to in subparagraph (b) shall have the right to be represented during the consideration of the matter by the Committee and to make representations orally and/or in writing.;

(h) The Committee shall, within twelve months from the date of receipt of the notification in accordance with subparagraph (b), submit a communication:

(i) If a solution is reached within the provisions of subparagraph (e),

The Committee limits its communication to a brief

a statement of the facts and the decision reached;

(ii) If the decision under the provisions of subparagraph (e) does not

If this has been achieved, the Committee is limited in its communication

a summary of the facts; written submissions and

recording of oral statements submitted by the relevant

by the participating States, are attached to the communication.

A communication on each issue is sent to the relevant participating States.

2. The provisions of this article shall enter into force when five States Parties to this Convention have made declarations in accordance with paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. The application may be withdrawn at any time by notification addressed to the Secretary General. Such withdrawal of a declaration shall not prejudice the consideration of any matter that is the subject of a communication already transmitted in accordance with this article; no subsequent communications from any State Party shall be accepted in accordance with this article after notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 22

1. A State Party to this Convention may at any time declare in accordance with this article that it recognizes the competence of the Committee to receive and consider communications from persons under its jurisdiction who claim to be victims of a violation by the State Party of the provisions of the Convention, or such communications received on their behalf; the Committee does not Accepts no communications if they relate to a State Party that has not made such a declaration.

2. The Committee considers inadmissible any communication under this article that is anonymous or, in its opinion, constitutes an abuse of the right to submit such communications or is incompatible with the provisions of this Convention.

3. Subject to paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention that has made the declaration referred to in paragraph 1 and which is alleged to be in violation of any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the issue and any measures that may have been taken by that State.

4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and the State Party concerned.

5. The Committee shall not consider any communications from any person under this article unless it is satisfied that:

a) The same issue has not been and is not being considered under any other procedure of international investigation or settlement;

(b) The person has exhausted all available domestic remedies; this rule does not apply in cases where the application of these measures is unreasonably prolonged or is unlikely to provide effective assistance to the person who is a victim of a violation of this Convention.

6. When considering communications under this article, the Committee holds closed meetings.

7. The Committee shall submit its views to the State Party concerned and to the individual concerned.

8. The provisions of this article shall enter into force when five States Parties to this Convention have made declarations in accordance with paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. The application may be withdrawn at any time by notification addressed to the Secretary General. Such withdrawal of a declaration shall not prejudice the consideration of any matter that is the subject of a communication already transmitted in accordance with this article; no subsequent communications sent by or on behalf of any person shall be accepted in accordance with this article after notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration..

Article 23

Members of the Committee and ad hoc conciliation commissions who may be appointed pursuant to subparagraph (e) of paragraph 1 of article 21 shall be entitled to the facilities, privileges and immunities of experts acting on behalf of the United Nations, as provided for in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 24

The Committee shall submit an annual report on its work under this Convention to the States Parties and the General Assembly of the United Nations.

Part III

Article 25

1. This Convention is open for signature by all States.

2. This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26

This Convention is open for accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 27

1. This Convention shall enter into force on the thirtieth day after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State that ratifies or accedes to this Convention after the deposit of the twentieth instrument of ratification or accession, this Convention shall enter into force on the thirtieth day after the date of deposit of its own instrument of ratification or accession.

Article 28

1. Any State may, at the time of signing, ratifying or acceding to this Convention, declare that it does not recognize the competence of the Committee as defined in article 20.

2. Any State Party that has made a reservation in accordance with paragraph 1 of this article may at any time withdraw its reservation by notifying the Secretary-General of the United Nations.

Article 29

1. Any State Party to this Convention may propose an amendment and submit it to the Secretary-General of the United Nations. The Secretary-General of the United Nations shall then transmit the proposed amendment to the States Parties, with a request that they inform him whether they favour the convening of a conference of the States Parties for the purpose of considering and voting on the proposal. If, within four months from the date of sending such a letter, at least one third of the States Parties support such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at that Conference shall be submitted by the Secretary-General to all States Parties for approval.

2. An amendment adopted in accordance with paragraph 1 of this article shall enter into force after two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations of their acceptance of the amendment in accordance with their constitutional procedures.

3. When amendments enter into force, they shall become binding on those States Parties that have accepted them, while the provisions of this Convention and any previous amendments that they have adopted shall remain binding on other States Parties.

Article 30

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to reach an agreement on the organization of the arbitration, the dispute may, at the request of either party, be referred to the International Court of Justice in accordance with the status of the Court.

2. Each State may, at the time of signing, ratifying or acceding to this Convention, declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties will not be bound by paragraph 1 of this article in respect of any State Party that has made such a reservation.

3. Any State Party that has made a reservation in accordance with paragraph 2 of this article may at any time withdraw its reservation by notifying the Secretary-General of the United Nations.

Article 31

1. Any State Party may denounce this Convention by written notification addressed to the Secretary-General of the United Nations. The denunciation shall take effect one year after the receipt of the notification by the Secretary General.

2. Such denunciation shall not release a State Party from its obligations under this Convention for any act or omission that occurred prior to the effective date of the denunciation, and the denunciation shall in no way prejudice the ongoing consideration of any matter that had already been considered by the Committee prior to the effective date of the denunciation.

3. After the effective date of the denunciation for a State Party, the Committee shall not begin consideration of new issues concerning that State.

Article 32

The Secretary-General of the United Nations shall communicate to all Member States of the United Nations and to all States that have signed or acceded to this Convention information on:

(a) Signatures, ratifications and accessions in accordance with articles 25 and 26;

(b) The date of entry into force of this Convention in accordance with article 27 and the date of entry into force of any amendments in accordance with article 29;

Article 33

1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States.

President

Republic of Kazakhstan

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